Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional

Little-noticed amid the commentary on the Supreme Court’s health care decision is the decision’s blow to congressional efforts to federalize medical malpractice law—a potential element of the Republican plan to “replace Obamacare.”

Medical malpractice cases, like most areas of civil justice, traditionally are judged by state courts under state law rather than by the national government. This is because, as American Founders such as Alexander Hamilton and John Marshall explained, the Constitution reserves most such matters to state control.

Yet the current U.S. House of Representatives—led by some who otherwise assail federal overreaching—have twice passed H.R. 5, a bill that would largely transfer control over medical malpractice lawsuits to the federal government. Fortunately, the measure has not passed the Senate. It is, however, being touted as part of the GOP plan to “replace” Obamacare.

Under Title 1 of H.R. 5 (the so-called HEALTH ACT), Congress would assume expansive authority over state court procedures. The bill requires state judges and juries to adopt federal standards of proof, federal damage rules, federally-mandated standards of guilt, federal statutes of limitations, and a federal schedule for attorneys’ fees that overrides agreements between attorney and client. H.R. 5 also dictates that certain legal information be withheld from juries. A portion of the bill with the Orwellian title of “State Flexibility and Protection of States’ Rights” provides that the measure overrides state law, with only minimal concessions.

Advocates of H.R. 5 claim the Constitution gives Congress authority to adopt the measure under Congress’s Interstate Commerce Power. This always has been a dubious argument, but has become more dubious in light of comments and holdings in the Supreme Court’s health care case.

The Interstate Commerce Power stems from two of the Constitution’s grants of authority to Congress. The first, called the Commerce Clause, gives Congress power to regulate interstate commerce. The second, called the Necessary and Proper Clause, grants authority to make laws “necessary and proper” for carrying out other powers, including the power to regulate interstate commerce. A close reading of modern Supreme Court cases shows that congressional authority to govern trade and insurance derives from the Commerce Clause, but that most of its other economic power (including regulating health care) comes from the Necessary and Proper Clause.

But as the Supreme Court has emphasized repeatedly, there are limits to Congress’s authority. Chief Justice Roberts’ health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose.

In his opinion for the Court, Roberts upheld as a tax the individual insurance mandate. But he also agreed with a majority of the court that the mandate could not be justified under the Commerce Power. One of his key observations was that (in accordance with the Founders’ understanding) the Necessary and Proper Clause does not grant power by itself, but merely clarifies how the Constitution should be read. Roberts further explained that the Necessary and Proper Clause does not permit Congress to exercise of any “‘great substantive and independent power[s]’ beyond those specifically enumerated. . . .”

Get the Book Today!

Among the “great substantive and independent powers” denied to the federal government is control over the branches of state government. Roberts wrote that laws that “undermine the structure of government established by the Constitution . . . are not ‘consist[ent] with the letter and spirit of the constitution’” and “are not ‘proper [means] for carrying into Execution’ Congress’s enumerated powers.”

In the Medicaid portion of Roberts’ opinion—in which he spoke for a seven-justice majority—he also emphasized that federal laws are void if they “undermine the status of the States as independent sovereigns in our federal system.” That principle, he said, has led the Supreme Court “to strike down federal legislation that commandeers a State’s legislative or administrative apparatus for federal purposes.” Among the cases he cited in this portion of his opinion was Alden v. Maine (1999), a prominent decision in which the Supreme Court voided a federal law ordering state courts to take jurisdiction over certain kinds of cases.

It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

It’s such a precarious hold we maintain over state sovereignty, vis a vis the Tenth Amendment. Relying upon the makeup of the Court to determine the scope of federal power and to divine the original intent of the Framers is a childish political tradition in and of itself. If Obama were reelected, the game would be up: he’ll tip the Court to the left and turn the country upside down.

Why, incidentally, would the tax power of Congress extend to functions not enumerated by Article 1, Section 8? Healthcare is not one of those enumerated functions/powers–nor even tangential to them,
For our conservative Chief Justice to so erroneously rule belies the ‘genius” of the Framers’ design.

Why not turn away from a study of distant history and toward a future written by our own generation? Let’s embark upon a new, decisive course toward local legal determinism, safeguarded as ever by constitutional civil protections?

@DarylLloydDavis I agree with that. Judicial review is kind of pointless and always has been. When it was needed to do the right thing it failed as in the case of Dredd Scott. What scares me is that judicial review is now a toll of upholding federal power while striking down state power. That can’t be good.

In designing a careful system of direct democracy I took away the lifetime tenure of the Justices–made them subject to the same recall that all elected and appointed officials ought to be. They’ve long since proven themselves unworthy of such veneration.

Representative government.is itself an outdated aberration. The judgments of an elected few, e.g. Pelosi and Reid, are more appropriate in securing the future of America than our own judgments? Perhaps in the days before electricity, gas engines, a national press, national parties, television and the internet, the idea of sending the better educated elites as our representatives had merit.

Self-evidently now it’s nothing but a pretense–as are judicial review and original intent.

Hijacking State court or high-jacking individual choices. It seems noone in washington seem to be able to comprehend minding thier own buinesses.
O yes there is a Washington “solution” to every problem that involves more laws, more restrictions upon our rights, more mandates. One does not question wether or not washington politicans suffer from Megalomania only because of the ubsurdady of the sujestion that they don’t. But still there must be some way we can force them to keep their hands to themselfs.

Sadly I suspect we are going to have to start working on ways our Liberal states can resist such a usurpation. This I suspect will be difficult given that the state courts unlike the state leglsators are supposedly bound by the rulings of Federal judges. Still when we find a way to effectively sever the connection and reestablish an independent state justice system. Such a tool should prove most invaluable for future efforts.

Until then however our primary problem is quite obviously the fact that Washington politicians seem to think that it is their job to “solve” every domestic problem real, proseived, or more often than not simply desired for the resulting control it gives them.

Congress can make all sorts of busybody laws for the federal territories. The issue is to educate the States of the Union that they are not federal territories, and federal territorial law does not apply.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.